The High Court has ruled on the costs of an unsuccessful interlocutory injunction application by a Garda superintendent who was suspended on pay. Mr Justice Allen made no order as to the plaintiff’s costs and ordered that the defendants’ costs of the motion be costs in the cause.
The ruling, delivered on 19 February 2021, dealt only with the costs of the motion. The court had refused all relief sought in its judgment of 11 September 2020, including the principal request for an injunction requiring the Garda Commissioner to lift the suspension. That earlier decision was not a trial of the underlying action.
The plaintiff argued that costs should be reserved to the trial judge or stayed until the action concluded. The defendants sought an order that he pay their costs, pointing to the complete failure of the application. The court rejected the claim that there was a general rule requiring injunction-motion costs to be reserved, explaining that the applicable rules generally require a costs award unless liability cannot justly be decided on the motion.
In the earlier application, the plaintiff had challenged successive suspension orders made under the Garda Síochána (Discipline) Regulations 2007. The first four orders, covering 16 May 2019 to 1 May 2020, cited an alleged disclosure of confidential information connected with a criminal investigation and an alleged incident at Hurler’s Bar involving another Garda member suspected of ingesting a controlled drug. A fifth order, made on 27 April 2020 and effective from 1 May, also relied on ongoing criminal and disciplinary investigations concerning alleged interference with fixed charge penalty notices and related District Court summonses.
The judge recalled that the plaintiff had not established a strong case likely to succeed that the confidential-information investigation had taken too long, or that the other grounds did not justify his suspension. He also noted that the evidence on the motion did not establish what had been done in that investigation or precisely what the plaintiff was suspected of doing. He said the plaintiff had failed to lay the evidential ground for the injunctions sought.
For the costs decision, however, the judge considered that discovery or new evidence might support the plaintiff’s present assertion that he should have been cleared of suspicion, and that this could have affected whether his suspension continued. He said a different picture might emerge at trial, while stressing that the interlocutory application had been founded on mere assertion and had sought to upset the status quo.
The judge concluded that the defendants should not be exposed to paying the plaintiff’s motion costs, but that it would be unjust to make the plaintiff pay theirs if the action later succeeded. Accordingly, the defendants’ costs are costs in the cause, meaning their entitlement depends on the outcome of the action. The underlying action’s final outcome is not stated in this judgment.